JACKSON (MARCUS) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: AUGUST 20, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000297-MR
MARCUS JACKSON
v.
APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE CRAIG Z. CLYMER, JUDGE
ACTION NO. 08-CR-00056
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
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BEFORE: TAYLOR, CHIEF JUDGE; NICKELL AND THOMPSON, JUDGES.
THOMPSON, JUDGE: Marcus Jackson appeals from a judgment of the
McCracken Circuit Court following a jury verdict finding him guilty of trafficking
in marijuana greater than five pounds and being a first-degree persistent felony
offender. For the reasons stated herein, we affirm.
On December 1, 2007, McCracken County Deputy Sheriffs Jessie
Riddle and Greg Wilson conducted a “knock and talk” investigation at the private
residence of Chris Cole. As a result of their investigation, the deputies seized
several pounds of marijuana and arrested Cole. Following a conversation with law
enforcement, Cole agreed to cooperate and telephoned Jackson to obtain more
marijuana. During the recorded phone calls, Jackson agreed to sell six pounds of
marijuana to Cole.
Officers from the Sheriff’s Department and the Paducah Police
Department transported Cole back to his residence. After Cole returned home,
Jackson was contacted and drove to the residence. When Jackson exited his
vehicle, he was stopped by police and an open duffel bag containing marijuana was
observed in plain view inside his vehicle. Deputy Riddle testified that Jackson
was not under arrest and that he was being detained. According to Deputy Riddle,
“[Jackson] was advised of what was going on . . . we looked inside the vehicle and
saw the marijuana in plain view. . . . As soon as we saw marijuana inside the
vehicle, he was told he was under arrest.”
After his arrest, Jackson was indicted by a McCracken County grand
jury for (1) trafficking in marijuana over five pounds; (2) possession of drug
paraphernalia, first offense; and (3) being a persistent felony offender in the first
degree (PFO-I). Following a jury trial, Jackson was found not guilty for the
possession of drug paraphernalia charge but guilty on the remaining charges. His
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ten-year sentence for marijuana trafficking was then enhanced to fifteen years by
virtue of his PFO-I conviction. This appeal followed.
Jackson contends that the trial court erred by denying his motion to
suppress evidence obtained against him in violation of his constitutional rights. He
contends that his handcuffing prior to arrest and the warrantless stop and search of
his vehicle were not supported by a sufficient evidentiary basis. Thus, he contends
that the trial court should have suppressed the drug evidence used against him.
Our review of a trial court’s suppression ruling is a two-step process
whereby we review its factual findings under a clearly erroneous standard, and its
application of the law to those facts under de novo review. Henry v.
Commonwealth, 275 S.W.3d 194, 197 (Ky. 2008). Findings of fact are not clearly
erroneous if they are supported by substantial evidence. Hallum v.
Commonwealth, 219 S.W.3d 216, 220 (Ky.App. 2007). Substantial evidence
constitutes facts that a reasonable mind would accept as sufficient to support a
conclusion. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003).
The trial court found that the police’s witnessing of Jackson making a
drug deal over the telephone with Cole and the observance of Jackson’s arrival at
Cole’s residence provided reasonable suspicion to detain Jackson for a preliminary
drug investigation. When police observed drugs in plain view inside Jackson’s
vehicle, police had probable cause to search under the automobile exception to the
warrant requirement. Additionally, the trial court found that the vehicle search was
valid as a search incident to an arrest.
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The Fourth Amendment of the United States Constitution and Section
Ten of the Kentucky Constitution prohibit unwarranted and unreasonable searches
and seizures by law enforcement against citizens. Commonwealth v. Hatcher, 199
S.W.3d 124, 126 (Ky. 2006). One exception to this general prohibition is the
automobile exception whereby police can search a legitimately stopped vehicle
where probable cause exists that contraband will be found in the vehicle. Dunn v.
Commonwealth, 199 S.W.3d 775, 776 (Ky.App. 2006).
Police may constitutionally stop an automobile and conduct a brief,
investigatory stop of a person when they have a reasonable, articulable suspicion
that criminal activity is afoot. Bauder v. Commonwealth, 299 S.W.3d 588, 590-91
(Ky. 2009). Although reasonable suspicion does not support the making of a valid
arrest, it may provide police with the authority to detain a suspect if the intrusion to
the suspect falls far short of the traditional intrusions associated with an arrest.
Dunaway v. New York, 442 U.S. 200, 212, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979).
Consequently, courts have held that merely handcuffing a suspect does not
constitute an arrest or require more than reasonable suspicion if necessary for
officer safety. Radvansky v. City of Olmsted Falls, 395 F.3d 291, 309 (6th Cir.
2005).
Here, police learned that Jackson was transporting a large quantity of
marijuana to Cole’s residence. According to Deputy Riddle, police discovered that
Jackson had an “extensive criminal history,” including convictions for trafficking
drugs, wanton endangerment, and second-degree assault. Deputy Riddle testified
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that police believed that Jackson might be a flight risk and safety threat due to his
criminal history and the seriousness of his potential charges. Based on this belief,
after Jackson exited his vehicle, police approached Jackson with weapons drawn
and handcuffed him to secure him.
After reviewing the record, we conclude that the seizure and detention
of Jackson by police did not violate his constitutional rights. While Jackson
alleges that Cole’s reliability was not corroborated, police observed the drug
transaction from the beginning stages to Jackson’s arrival at Cole’s residence.
Thus, the police had independent reasonable suspicion to conduct an investigatory
stop of Jackson. Bauder, 299 S.W.3d at 590-91.
Further, Jackson’s forcible detention was not unconstitutional because
police reasonably believed that he needed to be secured for their safety. Although
certain procedures may burden a person’s freedom of movement, police have the
authority to take any reasonably necessary step to “protect their personal safety and
to maintain the status quo during the course of the stop.” U.S. v. Hensley, 469 U.S.
221, 235, 105 S.Ct. 675, 684, 83 L.Ed.2d 604 (1985). Here, the nature of the
offense combined with Jackson’s criminal history was sufficient to justify the brief
detention of Jackson. Johantgen v. Commonwealth, 571 S.W.2d 110, 112
(Ky.App. 1978).
We further conclude that Jackson’s constitutional rights were not
violated when police searched his vehicle and duffel bag. Police may search a
vehicle and the containers therein when they have probable cause to believe that
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criminal evidence will be found in the vehicle. Dunn, 199 S.W.3d at 776. Police
heard Jackson discuss and plan a drug deal with Cole. They then detained Jackson
and observed an open duffel bag containing marijuana in “plain view” inside the
vehicle.
Under the plain view exception to the warrant requirement, police
may seize evidence if the evidence is immediately incriminating, they were in a
lawful place when they saw the evidence, and they have a lawful right of access to
the object itself. Hazel v. Commonwealth, 833 S.W.2d 831, 833 (Ky. 1992).
Therefore, beyond the probable cause obtained by observing the formation of a
drug deal, the police’s plain view of the marijuana in conjunction with the
automobile exception provided sufficient grounds to seize the drug evidence. Id.
Accordingly, the trial court did not err by admitting the evidence against Jackson.
Jackson also argues that the trial court erred by denying his defense
counsel’s motion to withdraw thereby denying him the right to a fair trial. Jackson
contends that his counsel should have been permitted to withdraw, so he could
have been permitted to obtain the counsel of his choice to present his defense.
When determining whether counsel can withdraw from representation
of a client, the trial court must look at the unique circumstances of each case.
Deno v. Commonwealth, 177 S.W.3d 753, 759 (Ky. 2005). A trial court must
determine whether there has been good cause shown before granting a motion to
withdraw. Id. An appellate court reviews the trial court’s decision under the abuse
of discretion standard. Jacobs v. Commonwealth, 58 S.W.3d 435, 449 (Ky. 2001).
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During Jackson’s suppression hearing, his counsel expressed a desire
to withdraw because Jackson had changed his mind about pleading guilty. Defense
counsel stated that he felt bad having represented to the court that his client was
going to plead guilty when his client changed his mind in a last-minute decision.
The trial court assured counsel that this issue had no affect on counsel’s standing.
Defense counsel then stated that he wanted to continue his representation of his
client, and Jackson expressed his desire for his counsel to continue representation.
Based on this review of the record, the trial court did not abuse its
discretion by denying Jackson’s counsel’s motion to withdraw. First, defense
counsel essentially withdrew his motion to withdraw by declaring that he wanted
to represent Jackson if Jackson desired his representation. Second, defense counsel
failed to demonstrate good cause sufficient to permit his withdrawal. The mere
withdrawal of a guilty plea does not require the granting of a motion to withdraw.
Therefore, we conclude that the trial court’s decision was not erroneous.
Jackson next contends that the trial court erred when it permitted him
to participate in his defense as co-counsel. Jackson contends that he lacked the
free will to decide to act as counsel and was forced to assume a greater role in his
defense based on his trial counsel’s deficient performance. We disagree.
When a defendant desires to make a limited or complete waiver of his
Sixth Amendment right to counsel, trial courts must conduct a Faretta1 hearing
which requires the completion of three steps. Hill v. Commonwealth, 125 S.W.3d
1
Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
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221, 226 (Ky. 2004). “First, the trial court must hold a hearing in which the
defendant testifies on the question of whether the waiver is voluntary, knowing,
and intelligent.” Id. “Second, during the hearing, the trial court must warn the
defendant of the hazards arising from and the benefits relinquished by waiving
counsel.” Id. Third, the trial court must make a finding on the record that the
waiver was made knowingly, intelligently, and voluntarily. Id.
During the trial, Jackson desired to participate in asking certain
witnesses questions. When informed he would have to be appointed counsel, he
requested the court’s permission to proceed as co-counsel. The trial court then
conducted a Faretta hearing wherein it discussed the perils of self-representation,
including negative feelings the jury might have and handling objections while
questioning. The trial court then advised Jackson not to become co-counsel
because of the high risks associated with self-representation.
Jackson responded that his main concern was that he did not want his
participation to subject him to having to testify. The trial court then discussed
several situations that Jackson’s questions might require him to take the stand. At
the conclusion of the colloquy, the trial court found Jackson’s decision to proceed
with hybrid representation was valid. Having reviewed the record, we conclude
that the trial court did not err by granting his motion to be co-counsel.
Jackson next contends that there were several palpable errors during
his trial which he contends affected his substantial rights. Having reviewed each
alleged palpable error, we disagree and will address them in turn.
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Under RCr 10.26, we may review a case for palpable error which
affects the substantial rights of a party even when the alleged errors were not
preserved by a proper objection at trial. Bell v. Commonwealth, 245 S.W.3d 738,
741 (Ky. 2008). An error is palpable when it is so easily perceptible and obvious
that it must be corrected to prevent “manifest injustice.” Schoenbachler v.
Commonwealth, 95 S.W.3d 830, 836 (Ky. 2003). Palpable error review ultimately
seeks to determine if there is a substantial possibility that the defendant’s case
would have resulted differently absent the error. Brewer v. Commonwealth, 206
S.W.3d 343, 349 (Ky. 2006). If not, the error cannot be palpable. Id.
Jackson contends that Detective Carter’s testimony constituted prior
bad acts and inadmissible investigative hearsay testimony. However, Jackson cites
to testimony that does not constitute hearsay testimony or evidence of prior bad
acts. Detective Carter testified about the action that he took during the sting
operation. KRE 801(c) provides that “‘[h]earsay’ is a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted.” Detective Carter’s testimony does not meet
the definition of hearsay as defined in KRE 801(c).
Further, there was no testimony of prior bad acts by Jackson. The fact
that the jury might infer that Jackson was a drug dealer who had sold drugs before
cannot prevent the prosecution from introducing evidence regarding how the drug
deal was set up. The prosecution is permitted to prove its case by competent
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evidence of its own choosing, not just the evidence that the defendant may want
the jury to see. Barnett v. Commonwealth, 979 S.W.2d 98, 103 (Ky. 1998).
Jackson contends that the prosecution introduced testimony regarding
his failure to talk to police after his arrest. He contends that this testimony violated
his right to remain silent and the prohibition of stating this fact to a jury. However,
Jackson failed to cite to the record where this testimony was introduced. So, not
only did Jackson not object to this testimony at trial, he has not cited to this Court
where the alleged palpable error can be found in the record. Therefore, because
there was no citation to the record, we conclude that there was no palpable error.
Johnson v. Commonwealth, 231 S.W.3d 800, 808 (Ky.App. 2007).
Jackson contends that the trial court erred by excluding his questions
and evidence that he asked or introduced at trial. However, Jackson makes no
specific arguments regarding any of these claims but states that his constitutional
rights were violated. Accordingly, we conclude that the allegations of error do not
constitute palpable error. Grief v Wood, 378 S.W.2d 611, 612 (Ky. 1964).
Jackson contends that the trial court admitted inconsistent
photographs of the black duffel bag, one showing an open bag and another
showing a closed bag. This evidence was relevant to the prosecution’s case
because the drugs were found in the duffel bag inside Jackson’s car. The alleged
inconsistencies in the photographs go to the weight rather than the admissibility of
the evidence. Davis v. Commonwealth, 147 S.W.3d 709, 727 (Ky. 2004).
Jackson contends that the trial court failed to strike Juror Chris Stone
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after Stone informed the court that he was not present during some of voir dire.
Despite his defense counsel’s failure to strike, Jackson argues that the trial court
should have struck Juror Stone because he was not vetted to ensure fairness.
Despite Jackson’s claim, Juror Stone received detailed individual questioning in
order to get him to the level of understanding as the rest of the veniremen. After
one question, Juror Stone indicated that he believed that marijuana laws were too
harsh on individuals but stated he could still be fair to the prosecution. After
reviewing the record, Jackson’s factual claim is not supported by the record.
Jackson contends that the trial court failed to order a mistrial when
Juror Aesha Wharton stated that she was contacted regarding the trial. According
to Juror Wharton, a Mr. Story telephoned her and asked her to take care of him
because he knew she was on the jury. Juror Wharton did not know how Mr.
Story’s case was connected to Mr. Jackson’s. When the trial court asked the
prosecutor about Mr. Story, the prosecutor informed the court that Story was one
of the individuals Cole stated that he could call to obtain marijuana. Following
further discussion, the trial court dismissed Juror Wharton.
While Jackson argues for a different result, the trial court did not
commit palpable error by failing to, sua sponte, declare a mistrial. Mistrials are an
extreme remedy and should be granted only when there is a “manifest necessity”
for such an action. Bray v. Commonwealth, 177 S.W.3d 741, 752 (Ky. 2005).
“The error must be ‘of such character and magnitude that a litigant will be denied a
fair and impartial trial and the prejudicial effect can be removed in no other way
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[except by grant of a mistrial].’” Id. (quoting Gould v. Charlton Co., Inc., 929
S.W.2d 734, 738 (Ky. 1996)). Consequently, we conclude that the nature of Juror
Wharton’s knowledge did not mandate that the trial court issue a mistrial.
Having reviewed Jackson’s numerous claims, we conclude that his
claims do not rise to the level of palpable error. We believe that Jackson received
a fair trial and that the alleged errors did not affect the outcome of his case.
For the foregoing reasons, the judgment of the McCracken Circuit
Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Lisa A. DeRenard
Benton, Kentucky
Jack Conway
Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky
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